Guantánamo: The Nobodies Formerly Known As Enemy Combatants

16.3.09

Changing the names of things was a ploy that was used by the Bush administration in an attempt to justify some of its least palatable activities. In response to the 9/11 attacks, for instance, the nation was not involved in a limited pursuit of a group of criminals responsible for the attacks, but instead embarked on an open-ended “War on Terror.” In keeping with this “new paradigm,” prisoners seized in this “war” were referred to as “detainees,” and held neither as criminal suspects nor as prisoners of war, protected by the Geneva Conventions, but as “enemy combatants,” without any rights whatsoever. Later, when the administration sought new ways in which to interrogate some of these men, the techniques it endorsed were not referred to as torture — even though many of them clearly were — but were instead described as “enhanced interrogation techniques.”

The Obama administration has clearly learned a trick or two from its predecessors. In its response to a court request for clarification of the meaning of the term “enemy combatant,” for use in the Guantánamo prisoners’ habeas corpus reviews (which were triggered by a momentous Supreme Court decision last June), the new government has responded to the challenge with a cunning sleight of hand. In a press release, the Department of Justice announced that it had dropped the use of the term “enemy combatant,” and that it had adjusted its definition of those who can be detained so that, instead of holding people who were “part of, or supporting, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners,” individuals who supported al-Qaeda or the Taliban “are detainable only if the support was substantial.”

As benign-sounding propaganda, in contrast to the Bush administration’s arrogant version, which almost always manifested a tangible disdain for Congress and the judiciary, this announcement has the alluring veneer of the “change” that Barack Obama promised throughout his election campaign, but in practical terms nothing has actually changed. The prisoners are now nobodies, with no label whatsoever to define their peculiar extra-legal existence, and the entire rationale for holding them without charge or trial — and the egregious errors made along the way — remain unaddressed.

In its filing with the District Court (PDF), delivered in response to a deadline of March 13, the government made clear that it was largely business as usual. In its opening salvo, the Justice Department claimed that the laws of war, which “include a series of prohibitions and obligations … developed over time,” and which “have periodically been codified in treaties such as the Geneva Conventions,” or have otherwise “become customary international law,” are nonetheless “less well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaeda and the Taliban.”

With this “current, novel type of armed conflict” standing in as a more palatable version of the Bush administration’s “War on Terror,” the Justice Department proceeded to defend the President’s authority, under the terms of the Authorization for Use of Military Force, which was passed by Congress within days of the attacks, “to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible” for the attacks, as well as “persons whose relationship to al-Qaeda or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.”

This statement raises a second flag of alarm, as this horrendously open-ended piece of legislation may have been appropriate at the time, but it was used by the Bush administration as the foundation stone on which all its subsequent forays into illegal and unconstitutional actions were based (including, it should be noted, holding these “detained persons” without charge or trial at Guantánamo for seven years), and it is disconcerting to realize that a conversation we should be having — which involves responding to the question, ”Is it justifiable, seven years and seven months after the 9/11 attacks, to claim that we are still involved in an open-ended and ill-defined ‘war’?” — has, instead, been swept aside.

Further disturbing signs that little, if anything has changed can be found in the government’s explanation of who, it asserted, can be held as the “Nobodies Formerly Known As Enemy Combatants” in the “Current, Novel Type of Armed Conflict.” In spite of claiming that these men must have “substantially supported” the Taliban, al-Qaeda, or other associated groups, the Justice Department specifically stated that it has the authority to detain not only “those who were part of al-Qaeda and Taliban forces,” but also other “members of enemy forces,” even if “they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations,” and adds, “Evidence relevant to a determination that an individual joined with or became part of al-Qaeda or Taliban forces might range from formal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaeda (as reflected in some cases by staying at al-Qaeda or Taliban safehouses that are regularly used to house militant recruits) or taking positions with enemy forces.”

This, of course, renders the word “substantial” worthless, as it allows the government to detain someone who never even “attempted to commit any act of depredation or entered the theatre or zone of active military operations” and may only have stayed in a house associated with those who did engage in militancy, which, to my mind, is not “substantial” support at all. Furthermore, the government asserts that “it is of no moment that someone who was part of an enemy armed group when war commenced may have tried to flee the battle or conceal himself as a civilian in places like Pakistan,” which effectively condemns anyone who may have traveled to Afghanistan before the 9/11 attacks to take the Taliban’s side against the Northern Alliance in Afghanistan’s long-running inter-Muslim civil war (a conflict which had nothing to do with the United States or its allies) into a terrorist if they happened to be present in Afghanistan when the 9/11 attacks occurred.

In this, the government’s thinking was clearly in line with Judge Richard Leon, the District Court judge whose rulings on the habeas corpus cases of ten Guantánamo prisoners in the last few months resulted in decisions that six of the men (five Algerian-born Bosnians, and Mohammed El-Gharani, a former juvenile) were to be released, but that four could continue to be held. In the case of one of the four, the Yemeni Muaz al-Alawi, Judge Leon ruled that the government had established that he “was part of or supporting Taliban or al-Qaeda forces,” because he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.”

From the point of view of an impartial observer, of course, the problem with Judge Leon’s ruling was that none of these allegations related to “hostilities against the US or its coalition partners,” but he also endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.”

In other words, Judge Leon ruled that Muaz al-Alawi could continue to be held because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, “contend[ing] that he had no association with al-Qaeda,” and stating that “his support for and association with the Taliban was minimal and not directed at US or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the US-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against US or coalition forces, the Government does not need to prove such facts in order for petitioner to be classified as an enemy combatant under the definition adopted by the Court.” In the new world of Obama’s Justice Department, all that needs changing are the words “enemy combatants” — to “Nobodies Formerly Known As Enemy Combatants” — and the conclusion is the same.

I am, therefore, bitterly disappointed by the Obama administration’s cosmetic tinkering with its predecessor’s supposed justification for holding prisoners at Guantánamo, as it appears, at heart, to endorse the lawless policies introduced by the Bush administration, and also to perpetuate some of its most damaging errors. In spite of claims by the Justice Department that its position “draws on the international laws of war to inform the statutory authority conferred by Congress,” the Obama administration has, in reality, wholeheartedly endorsed the Authorization for Use of Military Force (the founding document of the “War on Terror”), has failed to demonstrate that it has any willingness to pour scorn on the Bush administration’s claims that prisoners can be held without being either criminal suspects or prisoners of war, has endorsed its predecessor’s decision to equate the Taliban with al-Qaeda, even though there was never any justification for doing so, has overlooked the fact that the majority of the prisoners were bought for bounties (PDF) and were never screened according to the Geneva Conventions, has ignored the fact that the evidence against them (whether of “substantial” support or not) was often extracted through the use of torture, coercion or bribery, and has also defended the Bush administration’s self-proclaimed right to detain demonstrably peripheral figures in the Afghan conflict as “terror suspects.”

For a final demonstration of the absurdity the Obama administration’s position, I’d like to return to another of the cases reviewed by Judge Leon, that of Ghaleb Nasser al-Bihani, a Yemeni who had served as a cook for the Taliban and an affiliated group of Arab recruits. In a verdict that also fits with the new administration’s disturbingly loose definition of “substantial support,” Judge Leon ruled that “faithfully serving in an al-Qaeda-affiliated fighting unit that is directly supporting the Taliban by helping prepare the meals of its entire fighting force is more than sufficient to meet this Court’s definition of ‘support,’” and added, “After all, as Napoleon was fond of pointing out, ‘An army marches on its stomach.’”

To gauge how wrong this is, we need only compare al-Bihani’s case to that of another Yemeni prisoner, Salim Hamdan. Last August, Hamdan, a driver for Osama bin Laden, was tried at Guantánamo in the Military Commissions conceived by Vice President Dick Cheney and his close advisers (including, in particular, his legal counsel David Addington), sentenced and sent home in November to serve the last few weeks of a five-month sentence delivered by a military jury. As I wrote when Judge Leon made his ruling about al-Bihani, “Hamdan is now a free man, whereas al-Bihani, a man who never met Osama bin Laden, let alone driving him around, has just been told, by a judge in a US federal court, that the government is entitled to hold him forever because he cooked dinner for the Taliban.”

I added, “If President Obama is genuinely concerned with justice, he needs to act fast to tackle this squalid state of affairs, which does nothing to undo the previous administration’s disdain for and mockery of the laws on which the United States was founded.” That was just seven weeks ago, but now, despite his fine pronouncements in August 2007, when he declared, “We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary,” it seems that Barack Obama doesn’t care, and that his sympathies are far more in line with the arbitrary justice instigated by those “stubborn rulers” — George W. Bush, Dick Cheney, David Addington and Donald Rumsfeld — than they are with the military judge and the military jurors involved in Salim Hamdan’s case, who, effectively, set a seven-year limit on the detention of minor players in the “War on Terror” by giving Hamdan a short sentence, despite convicting him of “providing material support for terrorism.”

In analyses over the years, intelligence officials have stated that no more than 50 of the prisoners at Guantánamo had any meaningful connection with al-Qaeda, the Taliban or other terrorist groups. By that rationale, the Obama administration should be working flat-out to release the other 190 prisoners as soon as possible. Under its own definition of “significant support” for these organizations, however, the administration has, instead, raised the possibility that, after seven years’ imprisonment in conditions that ought to be a source of shame to any civilized society, a large number of these prisoners — these “Nobodies Formerly Known as Enemy Combatants” — still have a long way to go before they can hope to see the end of their ordeal.

29 Responses

The Boiling Frog says...

The phrase, “Nobodies Formerly Known As Enemy Combatants” in the “Current, Novel Type of Armed Conflict”, cleverly embodies, as much as anything I’ve read, the sanitizing sleight-of-hand that may be passing for change and progress nowadays.

One could speculate that, through its magnanimity and good intentions, the Obama administration is, deliberately or not, cementing and entrenching the most dubious accomplishments of the previous administration by putting a more acceptable face on them and declaring this to be “change” (or, more correctly, leading people to voluntarily embrace this as change).

Hi Andy,
One of the attorneys has decided since they are no longer enemies they have now become “hostages”. I will start referring to them as such. But this does raise an interesting issue. The government/military has justified holding these men because they found them to be enemies… now they are no longer enemies and so there is no longer a justification for holding them…. but at the same time the government is reviewing their files to see if there is a justification for holding them…
I think they just don’t have a clue.
Best regards,
Candace

Hi Candace,
I like it (in that grim way we Guantánamo-focused people “like” things).
Another lawyer has let me know that he thinks there are a lot of positive things to work with legally, which definitely constitute a change from the Bush days, but it’s hard to shake off the notion that they’re essentially playing with semantics, and that they’re still reasonably happy to be holding people that they regard neither as criminals not as PoWs.
Best,
Andy

Andy,
I have to say I am still optimistic…it is taking them longer than I think it should take but I think they are getting there… the biggest problem the Obama’s have is that they couldn’t count on us to give them time to figure things out… our guys have already been there too long so we couldn’t cut slack… and for the first time in all these years the judges seem willing to do something…. while they are still fighting to get their team together… oh well.
Best regards,
Candace

Disturbing to say the least. My own suggestion is to call the men until recently known as enemy combatants “Foreign” (or better, “Forcibly”) Renditioned Enemy-like Detainees,” or “FRED”… just to, you know, give them a name.http://thetalkingdog.com/archives2/001275.html

There is a school of thought that the unusually low voter turnout rate in the United States is actually a sign of the intellectual health of a good many of the American people, who recognize that while there are some arguable differences on some issues (such as appropriate levels of taxation and social spending), at their core, both of the two political parties that share the duopoly on power in the United States are so fundamentally identical on fundamental matters, such as our national security/police state, and of course, our imperialism, as to hardly be worth the trouble of “voting”.

And so here we are: while the change-promising Obama Administration came in a tremendous flourish, and issued some wonderful rhetorical devices (which I felt various human rights groups were all too hasty in lauding until something concrete action followed to back up the rhetoric), and other than the release of Binyamin Mohammed and initiate “movie night at Guantánamo,” the Obama Administration appears to represent an utterly seamless transition from the Bush Administration (complete with Bush Admin. SecDef Gates and with Cheney/Addington protege Susan Crawford still being “the convening authority!)

The difference, perhaps the only difference, is that unlike the Bush Administration, the Obama Administration may (not necessarily will, but may) be swayed by activism and organizing: if enough people make it clear that they care about these issues, perhaps the Obama Administration will adjust course, and behave more benevolently (if not, heavens, acknowledge that it is bound by the rule of law). If no such pressure is forthcoming, the Administration will focus on giving away tax-payer money to honor credit-default swaps and railing against corporate bonuses, while in substance, thinking up more Orwellian word games to justify continuing the indefensible practices it seems hellbent on carrying forward and otherwise behaving pretty much indistinguishably from the Bush Administration.

Thanks Candace and TD, for hopefully starting something of a debate.
TD, I’m with you about the Bush defense Department hangovers, and wonder how long any of them can stick around if genuine “change” is going to happen, but I particularly liked your last comment, Candace, as I think it’s true that the Obama administration wanted time to get their act together, but that time just isn’t there for the men wasting away in Guantánamo.
On a brighter note, Obama’s Justice Department has certainly made it clear that they believe that decisions about the authority to hold “detainees” require Congressional approval, rather than being justified by the Bush administration’s commitment to unfettered executive power, but I still think it’s going to be a long struggle to make sure that people less significant than Hamdan don’t end up facing trials, when, really, all the Taliban foot soldiers and other peripheral figures (not to mention those still there who never even entertained the thought of any kind of militancy) should be released as soon as possible.

I am happy to see the term “enemy combatant” consigned to the etymological footnotes, right along with concepts like quadroon and octoroon. The term has always best described Bush/Cheney’s own stance vis a vis the U.S. Constitution, and we are well rid of it.

To the extent that DOJ is engaging in mere wordplay, or as Anthony Romero of the ACLU has put it, “a half-step in the right direction,” I think it is indicative of how abstract and removed the realities of incarceration are from the minds of the DOJ lawyers and from Attorney General Holder himself. I’m beginning to think 72 hours of incarceration should be a condition of employment at Justice, maybe in the Federal Court System as a whole, and possibly right up to the Supreme Court. Like NASA astronauts who must endure every kind of simulation before they’re entrusted with piloting a spaceship, isolation behind locked bars with all the attendant deprivations is probably the best guarantee, maybe the only one, that liberty will not be stolen so casually, and for these insane durations. If the inmate experience were to be written on their bodies, and imprinted on their souls, the words on the Memorandum might be very different.

I meant to reply to your “FRED” post, as it’s a good one, but I was hammering away on the “Nobodies” article, to get it out. I’ve now been doing a weekly column for the Future of Freedom Foundation for five months, and — how surprising — I haven’t run out of topics to discuss!

There was once a time that I thought I too would lose things to rail about once we had “President Obama.” I have no idea what I was thinking; for some reason, when “my own side” lets me down, it bothers me more!

I felt like that after being “betrayed” by Tony Blair — because I hadn’t been paying enough attention, and because we were all so very glad to see the end of 18 years of Tory rule. I honestly don’t think Obama’s as bad, but I did underestimate how many scumbags attach themselves to a winner … and he is, of course, facing the greatest human rights betrayal in modern American history; one that, essentially, involves serious crimes committed very deliberately by the administration, supposedly justified by the terror threat, and supposedly covered by the “golden shield” of the OLC’s legal advice. And given that he clearly needs to make no enemies if he’s to stand a chance of coming up with a solution to the problems of the economy (not that anyone in power, or close to power, actually has an answer), it’s completely beyond any expectations we might have, regarding what is correct, to think that he’ll stand up in Congress and say, “The Bush administration made Richard Nixon look like an OK sort of guy,” even though that’s clearly the truth.

Well, the more sinister and cynical view, and sadly, the one supported by actual evidence (Barack’s “personal letter to his fellow alumni” at the class 25th reunion being read by “Barack’s friend”, one Daniel Loeb http://en.wikipedia.org/wiki/Daniel_S._Loeb) is that Barack is basically a buddy of the rich and powerful (powerful because they are rich) and, ahem, ultimately, largely a corporate spokesmodel, and unlikely to do anything at all of a radical “change” nature that corporate America is unhappy with. Certainly, corporate America is very happy with the very national security model of a modern police state, i.e., people who appear to present potential systemic trouble can be conveniently disappeared in the name of national security, particularly, ahem, people who aren’t White.

And lo and behold, besides keeping Gates/Crawford et al. on his national security team, Barack gives us Larry Summers, Tim Geithner, et al., on his money team, i.e., the very same people who appear to have never met a financial regulation that they liked… so, that said… while the atmospherics and the social issues and the taxing and spending proposals are certainly more favorable than his less likeable predecessor, they are nothing that corporate America will have a particular problem going along with, because things like credit default swaps and all will continue to be uncontaminated by actual regulation (with the Government of the United States now backstopping them with taxpayer money to boot!).

Frankly, corporate America might well have a problem going after members of the prior Administration, if for no other reason than because so many of its key players have ensconced themselves so powerfully within corporate America itself (Haynes to Chevron, Flanigan to Ford, Ashcroft the lobbyist to the stars, etc.), and of course, the essence of the Bush Admin, was actually more corporate than it was strictly for torture (Cheney himself somewhat of an exception)… indeed, the very IDEA of the particular tortures came from the private contractors, America’s own Dr. Mengeles, Jensen and Mitchell, Boeing/Jeppesen was travel agent for torture, Kellogg Brown & Root built torture chambers, etc., etc. It would just open too many unpleasant doors, all things considered, to have to… look at these unpleasant things.

By my read, the OLC golden shield only protects people (like the line CIA agents who actually committed the torture) who (1) didn’t themselves write the OLC memos, and (2) didn’t participate in any re-writes of or direct the production of the OLC memos… the main villains, Addington, Yoo, Haynes, Gonzales, Ashcroft, etc. can’t get away with their own roles in writing or rubber stamping memos and argue that the memos they wrote have the salutary effect of covering themselves for their later actions! I think Philippe Sands kind of went through that in his book.

But it all doesn’t matter: corporate America simply does not see it as in its interest to have a public spectacle made of prosecuting powerful White people who, after all, were only keeping the world safe for Halliburton, General Dynamics and Exxon Mobil. Just as we’re now keeping it safe for Goldman Sacks, Deutsche Bank, etc. Not a certainty, to be sure, but it is how I would bet.

Hello, I am submitting my latest blogpost with a bit of a qualifier… This is about trying to find the way into something substantial which doesn’t feel like spinning wheels of wasted energy.

I’d love to see us work into some unity of action with this storehouse of information so carefully laid out for us to use by Andy. And with the combined info and concerns of each one here, including the lawyers and writers.

Seeking the Special Prosecutor for war crimes certainly seems a part of this yet may also delay or do nothing about so many prisoners the US has hidden away from the light.

‘Seems so simple and rather weak at times to do something like reprint the letter against torture by our local US Representative to the House…to organize a meeting with his Director of Public Policy and to get out & about the startling photo of a rendition in flight & some kind of Call to Action by publishing the Comments section Amnesty’s latest call to stop torture (a more powerful one than usual.)

I would really like to spend more time reading more from all of you here who stay so on top of the details, writing, becoming more informed.

Also it feels sometimes like I’m on a thin tightrope to be working with folk locally who by campaigning for Obama helped save this US & the world from someone who’s former colleagues said they wouldn’t want his finger (and temper) near “the red button”…

And others who are disgusted with all manner of Democrats and Republicans who also have a lot to say…yet who may not be heard over the anger…as righteous & right as it often is…

Yet wading through all the above mean doing something about what we know (or rather what little most of us know, including me) and there doesn’t seem to be a lot of time to waste…

Is there anyone here who can help us find a common strategy which may work as a kind of movement worldwide against torture…instead of lots of spin off groups & plenty of erudite intellectuals seeking to stop the same through the sheer might & volume of words – as passionate as this is?

I’m quite sure you all have this story – still, Robert Parry (who years ago broke the Iran-Contra Affair at Newsweek and has been an independent writer for some time) and his writers run a helpful site!

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington